Trump v. Mahr: Another Donald Contract Folly

(Credit: Ethan Miller/Getty Images)

(Credit: Ethan Miller/Getty Images)

In 2012, Donald Trump, flirting with a run for the presidency of the United States and criticizing its incumbent, Barak Obama, pressured the President to confirm his U.S. citizenship by publicly disclosing his birth certificate.

Despite Obama having done so, Trump sustained the pressure, posting a video on the internet on October 24, 2012—the last week of the election campaign—in which he offered to pay $5 million to Obama as consideration for the President publishing his college and passport applications and records.

Trump was serious, even suggesting charities, clarifying his goal of producing the information, and committing to pay within one hour. The offer also had a deadline: October 31, 20012 at 5:00 p.m. That hour having come and gone without Obama accepting, the offer terminated Obama’s power of acceptance.

On January 7, 2013, the comedian and political talk show host, Bill Maher, appeared on the Tonight Show with Jay Leno. After calling Trump a liar and racist, he characterized some of Trump’s public ramblings as “syphilitic monkey.” Then came what Trump portrayed as an offer: “suppose that perhaps Donald Trump had been the spawn of his mother having sex with an orangutan. . . . I hope it’s not true . . . , but, unless, he comes up with proof, I’m willing to offer 5 million dollars to Donald Trump . . . that he can donate to a charity of his choice. . . .”

Trump formally submitted his “acceptance” of this “offer” the next day, sending a copy of Trump’s birth certificate attesting that he is “the son of Fred Trump,” and naming the charities designated as beneficiaries of the $5 million. In Trump’s view, a contract was formed “the moment the Acceptance Letter was sent,” a reference to the usual rule of acceptances, which makes them effective on dispatch (affectionately referred to as the “mailbox rule”).

On February 4, 2013, Trump sued Maher. The lawsuit, of course, was an inherent loser, and Trump soon withdrew it. But in their filings, Trump’s lawyers got much of contract doctrine right, in both the Obama background and Maher interactions.

In relation to Obama, the lawyers correctly noted that (1) an offer creates the power of acceptance, (2) an unrevoked offer may be accepted by following the route to acceptance stated in the offer and a binding contract results, and (3) that the power of acceptance terminates upon any expiration stated (or upon the offer’s revocation of it, the offeree’s rejection of it, or the offeror’s death).

So why did Trump file such a patently frivolous lawsuit?  For a hint and another example of how Trump is a prolific frivolous litigator in American courts, see this companion post.

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7 Responses

  1. Brett Bellmore says:

    Why did he file, if he had little chance of prevailing?

    I’d assume because he wanted maximum publicity for the fact that he’d had no trouble almost instantly meeting Maher’s challenge, as contrasted with Obama’s non-performance. So as to underscore that Obama was keeping his records secret as a matter of choice, not difficulty.

    Indeed, you’ll recall all that talk about how the original birth certificate couldn’t legally be produced. Only, the moment a judge scheduled a hearing on the merits in the suit to see it, Obama managed to produce it. Thus demonstrating the long standing refusal was just that, refusal. Not incapacity.

    This was a controversy Obama was keeping alive deliberately, because he could have ended it at any time. You really need to ask why.

  2. Shag from Brookline says:

    Yet another frivolous comment by Brett.

    • Brett Bellmore says:

      I thought it relevant.

      It’s true that many people have the naïve idea that the courts are expected to enforce all contracts unless they’re literally impossible to carry out. But it’s clear Trump isn’t in that camp. So it was likely for PR purposes. I’ve identified what is, in the context, a reasonable PR purpose.

      • Shag from Brookline says:

        But a reasonable PR purpose may be legally frivolous.

        • Brett Bellmore says:

          Yeah, his basis for suing was frivolous. That didn’t make my identifying it frivolous.

          • Shag from Brookline says:

            What PR benefits did Trump ge from his frivolous law suit? The defendant got bragging rights and has materials for another edition of his book with information obtained during the frivolous law suit. But Trump is a narcissist. You seem to be as well.

            • Shag from Brookline says:

              OOPS! I was thinking of an earlier frivolous law suit. Attorneys often advise a client wishing to pursue a defamation claim that it repeats over the time of the law suit what is alleged to be defamatory over and over again, which can be damaging even is the defamation claim is not frivolous. But when it’s frivolous others may use similar techniques to get under the skin of The Donald (aka the Creamsicle). So what is the PR benefit? The Donald getting his name spelled right in the tabloids, which may also include references to other frivolous law suits? The Donald may think this makes him seem tough, rather than a silly Richy-Rich.